Card Range To Study

7 Cards in this Set

D fails to file a timely answer to a properly served complaint and summons.
Must have notice.
55b1 - clerk m/ enter but m/b for a sum certain (D never paid)
55b2 - s/ apply to the court

Preference to see the parties engage on the merits of the dispute instead of entering default judgment.
P seeking relief from defaults get them set aside if they can show some plausible reason for failing to respond to the summons - RULE 55c.
60b - permits the reopening of the case even after judgment is entered on a default.

Discuss involuntary dismissal:

RULE 41b - P failure to prosecute the lawsuit or for failure to comply with a court order
Forces P to pursue the lawsuit to some resolution.
Takes lawsuit off the books - adjudication on the merits

Discuss voluntary dismissal:

RULE 41a1 gives P the right to voluntarily dismiss action at any time before D answers or files a motion for summary judgment.
Usually w/o prejudice.
Attempts to safeguard P right to terminate the proceedings while at the same time preventing arbitrary dismissals after an advanced stage of the proceedings h/b reached.

RULE 41a2 gives the P an opportunity to dismiss lawsuit beyond the early stage of the litigation only with the ct permission.
Possibility that lawsuit w/ prejudice the D b/c of the timing of the dismissal and the possibility that P may restart his lawsuit at a later time.

Discuss Motion for Summary Judgment:

RULE 56 - intended to decide if there are factual decisions to be made in order to go to trial. Forces person to come up with facts that are admissible evidence. If not, motion granted.

Rule 56 governs the making and granting of motions for summary judgment.

56c - A MSJ c/b granted only if two requirements are met
The admissible evidence before the court m/ show that there is no genuine issue of fact
The movant m/b entitled to judgment as a matter of law on those undisputed facts.

What are the differences b/w Motion to Dismiss (12b6); Motion for Judgment on the Pleadings (12c); and Motion for Summary Judgment (56)?

12b6 - made before or with answer, says even if P facts as alleged in complaint are true, P has no basis for remedy against D  h/n stated a claim upon which relief c/b granted.

12c - made after pleadings are closed (complaint and answer), any party m/ move for J on pleadings - based on allegations in complaint and what D has admitted/denied/raised as affirm defense in answer, one party is entitled to relief - rarer than MTD.

56 - either, if submitted with documents outside the pleadings (affidavits) - c/ also make separate motion. 56 - standard is that J w/b rendered, in favor of moving party, if pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material facts and that moving party is entitled to judgment as a matter of law  purpose not to weigh evidence but to determine whether there is a factual issue for trial.

What does the pretrial conference entail?

Ct m/ in its discretion direct the atty for the parties and any unrepresented parties to appear before it for a conference or conferences before trial.
Scheduling order limits the time.

Order s/b issued w/in 90 days after the appearance of the D and w/in 120 days after the complaint h/b served on D.

Schedule s/n/b modified except upon a showing of good cause and by leave of the judge.

What is the pretrial order?

To prepare parties for the actual trial by encouraging both a winnowing of legal theories and factual disputes and a precise id of questions to be contested at trial.
Hope to reduce the time required for trial and enhance the eventual quality of the trial.
Trial time of pretrial cases w/n reduced when the time spent in pretrial was taken into account and that the chances for sttl w/n enhanced but that the quality of trials was improved in terms of party preparation and effective presentation.
Problems when pretrial order specifies that certain issues w/b tried, certain witnesses will testify, or certain evidentiary items w/b introduced, and one party then seeks to raise matters or present evidence w/in the scope of the order.